Senator Mike Lee, your constant reminder that Supreme Court clerkships don’t necessarily signal intellectual accomplishment, took to social media to applaud a new Justice Department memo declaring that disparate impact liability is unconstitutional, despite being enshrined in over half a century of legal precedent and its explicit codification over 30 years ago.
The new opinion took the Supreme Court’s shadow docket order allowing Alabama to impose new election maps as proof that it’s unconstitutional for the EEOC to use its enforcement power to make employers follow the Civil Rights Act. Theoretically, the shadow docket is for emergency orders strictly limited to the parties involved, but… YOLO. And that’s how an interim order allowing Alabama to run an election with racist maps became the basis for ending laws against employment discrimination.
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For such a fierce defender of true merit-based hiring, one might easily forget that Lee got a Supreme Court clerkship with his dad’s former assistant. Nepo babies always manage to have the deepest thoughts about minorities lacking “merit.”
If only Mike Lee had a connection to an historically persecuted religious group that could very easily become victims of discrimination that only disparate impact liability could catch…
Mike seems to have learned nothing from the previous week. That’s when his social media turned into non-stop whining about the Defense Department releasing a new coding system for religious affiliations that classified the LDS church as a non-Christian religion. After Lee complained about the DoD policy, the Pentagon “fixed” the situation, not by adding Mormons back to the community of Christian religions, but by deleting the whole “Christian” category rather than acknowledge Mormons as “real” Christians. It’s like those conservative localities that banned marriage altogether so they didn’t have to let gay people get married.
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Pete Hegseth’s decision to ice out Mormons had no practical impact, but as a symbolic act served as a reminder that the Christian nationalists that Lee actively supports will gleefully throw him overboard at the first opportunity. But that’s the thing about civil rights… taking them away is all fun and games until someone comes for you.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.